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Shortly after we published our Lighting issue, in which we featured Cade Martin’s use of HMI lights to shoot the Starbuck’s Tazo tea campaign, photographer Rodney Smith cried foul. He sent us an e-mail saying that many people had contacted him to say they thought Martin’s work, including the image we ran on our cover, copied Smith’s work.

Smith directed us to a post on his blog in which he had written, “What I’m really not sure about, is why someone would applaud or even hire a vision that is by it’s [sic] very nature ‘second-rate.’” Smith didn’t name Martin or PDN specifically, but his blog post went on to say: “I realize that there is always much in life to imitate and the urge to do so is enormous, yet I also realize that to be original one has to look deep within themselves and find what no one else can copy, a very private voice.” The post appears with an image by Smith of a woman sitting in a fancy house in streams of sunlight, surrounded by teacups.

Smith also told PDN that Starbucks had contacted him about shooting for the campaign, though he couldn’t remember when.

The question Smith seems to be posing on his blog is: How could PDN have featured work that shares similar propping and subject matter as an image created previously? The answer is: We hadn’t seen Smith’s image. We know a lot of Smith’s black-and-white work, but hadn’t seen—or at least didn’t remember—the work that Martin’s resembles. So, if we had see Smith’s images first, would we have asked Martin to explain the lighting techniques he used to create another model-with-teacups image? Probably not.

In the plethora of images that surround us daily, we are constantly seeing projects, photo stories and campaigns that resemble works we’ve seen before. Comparison is inevitable, and we tend to privilege whichever example we saw first, and ignore the one we saw later. And at a time when ad agencies and clients are cautious of greenlighting any idea that isn’t tried and tested, photographers who manage to squeeze something fresh and inventive to their depiction of familiar themes and visual symbols are more likely to grab our attention.

We’re frequently sent pairs (or trios) of similar-looking photo projects by outraged readers who think they’re clear-cut examples of copyright infringement. But these similarities rarely rise to the legal definition of infringement, because the subject of a photograph isn’t protected by copyright law. Recently an appeals court judged who ruled against a photographer in an infringement case expressed sympathy with “the frustration of photographers …whose works are afforded a limited copyright because they are comprised substantially of unprotected content.” As the Supreme Court has stated, “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Inventing new photographic material whole cloth, without reference or regard to the models of the past – from Rembrandt to the latest photography show – is nearly impossible in photography, and it would produce aridly self-referential work. The creativity of photographers who “build freely” on models from the past helps their work stand out, and push the medium forward.

Martin wouldn’t respond to our request for comment, beyond saying that he’s proud of his contribution to the campaign and the accolades it’s received. We appreciate that he gave so much time to sharing techniques and lighting advice, both with to and with our readers.

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